Parking Eye, Court papers recieved from Northampton.

I have been asked to move this post to maybe get more attention I will post all I can without giving away my identity.

This started in early January when we got the first letter from Parking Eye, The driver had overstayed by around 18 mins, then I started to research and found this forum and decided to follow the advice given.

I think I have included all relevant points but will give other information if required.

Letter number 1, January 27th
Do these rules apply to a slightly different situation?The car was parked at a local car park with a 2 hour limit, no ticket was issued it was all done by camera the driver overstayed by 18 minuets and I have now had a parking charge notice from "Parking Eye" with a discount if paid early. I am very tempted to ignore the whole thing but don't want to end up with a huge bill. Advice would be much appreciated.
I am now minded to just ignore all correspondence from these people. They did however include a leaflet quoting the "Protection of freedoms act 2012-changes to private parking" which the leaflet says came into operation on the 1st October 2012. It says that the appeals are dealt with by an organization called "POPLA".
Has anyone any knowledge of this and does it change the situation? I suspect not and that this is just a numbers game this company plays (the majority of people will pay these charges) I must admit I am still a bit nervous about not paying. Should I go through their appeals process?

Letter number2, (March 8th)
I thought they had forgotten me but this morning I got letter number 3 from "Parking eye" This makes a big thing of schedule 4 of the Protection of freedom's act. They are demanding £100 within 14 days or further action may be taken such as the instruction of solicitors to secure payment or the issuing of court proceedings, They are insinuating that this will incur extra expense which I would be liable for. I am still going to ignore them under the advice given here and sit it out.

Letter number 3, April 5th
The saga continues. I am at present away from home so have only seen this letter on an email.
The mail is from an "enforcement agency" and states that as I have not even acknowledged any of the correspondence from "Parking Eye" they are giving me one last chance to pay the £100 parking charge, If I do not pay within 14 days then they will have no alternative but to advise their clients (the landowners) of the situation and this may result in them referring this to their solicitors which could have an adverse effect on my credit rating if I am taken to court. It looks to me like all your predictions are coming true and after about 2 months they have reached step 2.
I presume that step 3 will be a letter from a Solicitor? Does anyone know if this will be a solicitor or as I suspect another mail from the same office?

Letter number 4, May 5th
Just got another letter almost exactly like the last one only pointing out that my credit rating may be in danger of being effected if I dont pay! I am getting heartily sick of these ppl now. How long will these threats go on does anyone have any suggestions on this?

Letter received yesterday.
Hi its been a while and to be honest I thought that these people had gone away but alas I was wrong.
I have today got what appears to be a claim form from NORTHAMPTON (CCBC) The claim is now for £165 which includes a £15 court fee and a £50 Solicitors fee. The form names a "Rachel Ledson" as the claimants solicitor.
The mention again is that if this ignored them my Credit Rating could well be affected.
I was directed to a website www.moneyclaim.gov.uk which seems to confirm that a claim was indeed made on the 8th July at this court. I have various option ranging from
1 Admission
2 Partial admission
3 Disputing the claim.
4 Acknowledgment of service and an opportunity to ask for an extension of time to 28 days.
5 Do nothing and if so judgment may be entered against me.

Re: Parking Eye, Court papers recieved from Northampton.

It is becoming clearly evident that PPCs are misrepresenting the Protection of Freedoms Act 2012 (PoFA). This practice needs curbing and quickly. I would not be at all surprised to see all and any of Parking Eye's contested claims struck-out or withdrawn at the last minute. The feature on last night's episode of BBC TV's "Your Money, Their Tricks" (Hope I've got that right.) exposes some of the more insidious tactics PPCs wil use in their desperation to grab motorists' money. A legal professional who was on the programme, made it quite clear that unless they can prove actual loss suffered, they haven't a cat in hell's chance of getting any money out of a motorist. If the PPC is running a Pay & Display car park, then all they are entitled to claim is the fee for the unpaid period of time and no more. I can see PoFA being amended to consign PPCs to the dustbin of history, as happened to clamping firms.

Life is a journey on which we all travel, sometimes together, but never alone.

Re: Parking Eye, Court papers recieved from Northampton.

Originally Posted by bluebottle

It is becoming clearly evident that PPCs are misrepresenting the Protection of Freedoms Act 2012 (PoFA). This practice needs curbing and quickly. I would not be at all surprised to see all and any of Parking Eye's contested claims struck-out or withdrawn at the last minute. The feature on last night's episode of BBC TV's "Your Money, Their Tricks" (Hope I've got that right.) exposes some of the more insidious tactics PPCs wil use in their desperation to grab motorists' money. A legal professional who was on the programme, made it quite clear that unless they can prove actual loss suffered, they haven't a cat in hell's chance of getting any money out of a motorist. If the PPC is running a Pay & Display car park, then all they are entitled to claim is the fee for the unpaid period of time and no more. I can see PoFA being amended to consign PPCs to the dustbin of history, as happened to clamping firms.

Thanks for that , Mystery. It does make one wonder exactly which planet District Judge Nield is on. If the law says you cannot penalise someone through a contract, that is it. The law is pretty clear. It does make me wonder whether the courts were being mislead.

Life is a journey on which we all travel, sometimes together, but never alone.

Re: Parking Eye, Court papers recieved from Northampton.

Unless the registered keeper or the carpark is in England and the other one is in Scotland then no you don't contest jurisdiction. However they need to have jumped through all the hoops to pursue the registered keeper in court. Any failure and you have an even better defence than penalties because the law is crystal clear and should not be ignored. No opinion, just fact so it's very difficult for M'lud dimwit to screw you over.

Re: Parking Eye, Court papers recieved from Northampton.

Its been a while but the story goes on, I now have a date to attend the Small claims court but have been contacted by the courts Mediation service who indicate that they (Parking Eye) are willing to proceed to Mediation.
Has anyone had experience of the mediation system and how seriously Parking Eye might take this. If I go to Mediation could this have any effect on the small claim if it fails.

Re: Parking Eye, Court papers recieved from Northampton.

I don't think i've heard of them doing that before. Usually i'd say they want money, you don't want to give them any so there isn't a middle ground and it's not worth it. However in a bid to appear reasonable to the court i'd accept even if you and i wouldn't expect it to work. The worst that happens is you fail to agree and it proceeds to court.

I can only help with what you tell me. Post up information (other than names and addresses!).

I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

Upload images to your thread like this .Email kati@legalbeagles.info if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

Re: Parking Eye, Court papers recieved from Northampton.

I can only help with what you tell me. Post up information (other than names and addresses!).

I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

Upload images to your thread like this .Email kati@legalbeagles.info if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

Re: Parking Eye, Court papers recieved from Northampton.

Their reply is pages and pages of precedents and a full plan of the car park and pictures of the signs as well as the so called authority from the owners of the land who are a firm called "Threadneedle Pensions". If you think it would help I will post up the written pages if I can find my around this computer as I am not very computer literate.

Re: Parking Eye, Court papers recieved from Northampton.

Originally Posted by Talkinman

Their reply is pages and pages of precedents and a full plan of the car park and pictures of the signs as well as the so called authority from the owners of the land who are a firm called "Threadneedle Pensions". If you think it would help I will post up the written pages if I can find my around this computer as I am not very computer literate.

Like this ?

Reply to Defence

1 ParkingEye agrees with the defendant on this point.

2 ParkingEye does not dispute this.

3 ParkingEye's Parking Charges are issued on the basis of a contract with the motorist, set out via the signage at the site. The signage sets out the terms and conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable ifthe conditions are not met. We ensure signage is ample, clear and visible in line with the British Parking Association (BPA) code of practice to ensure that the motorist is bound by them when they enter and remain at a client site, so that all users of the site are obliged to follow these rules. This is a matter of contract law. In ParkingEye v Kevin Shelley (2013),Circuit Judge Dodd stated that a contract can be formed by conduct, not just in writing Hefurther stated that the contract, as set out on the signage, is clear and certain enough, and that the terms were clear and easy to understand. He stated that it was not common for the courts to find penalty terms within a contract. It was further found that, on private land, the landholder is entitled to set out terms and conditions, subject to law, and that these are fully enforceable.

3.1 The case of Vine v London Borough of Waltham Forest (2000) proves particularly useful in respect to the creation of a contract with the driver. It was found by Lord Justice Waller that:

“Normally the presence of notices which are posted where they are bound to be seen, forexample the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of an appreciated the warning.”

3.2 The driver is not coerced into using the car park. If the driver was not prepared to agree to the terms and conditions set out on the signage, they should not have used the car park. However by driving into the car park and parking their vehicle the driver agrees to the parking terms detailed on the signage. In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd found that, on private land, the landholder is entitled to set out terms and conditions, subject to law, and that these are fully enforceable. Furthermore it should be noted that Section 7.1 of the Department of Transport's guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 states that a:

“car park on private land will normally have signs setting out the terms and conditions upon which parking is offered”.

3.3 In accordance with this ParkingEye's car parks have ample and clear signage that outlines these terms and conditions. Section 7.1 further states that:

“Drivers can then decide whether or not to accept those terms and conditions. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park with the landholder.”

3.4 In this location, as the images attached show, there is clear and ample signage at the entrance to and throughout the car park. ParkingEye firmly believes that the defendant entered into a legally enforceable contract.

“On the facts of this case we do not consider that any offer was made by VCS that was capable of forming the basis for a contract between it and the motorist. VCS was not in a position, by virtue of its limited licence, to make any offer of a right to park. The ability tooffer such a right was not conferred by the contract with the client, either expressly or byvirtue of the interest in the car park conferred on VCS. That interest did not amount to a licence to occupy, or give VCS any right to possession. It merely conferred a right of entry to perform VCS's obligations under the contract.”

3.6 VCS did not have the authority to take legal action in their own name, 'by virtue of its limited licence”. This does not apply to ParkingEye as our contract with our client clearly expresses that we can take legal action to recover any unpaid Parking Charges, in line with the British Parking Association Code of Practice.

3.7 We include a witness statement signed by the landholder confirming that [stet] had the written authority to issue Parking Charges at this time of this Parking event and that this authority is contained in a contract. The contract itself contains much commercial information which is not related to this case and therefore we are disinclined to divulge it. However, a copy will be made available to the court if requested by the court.

4 In relation to the value of the Parking Charge, ParkingEye maintains that its charges are fair and reasonable. Furthermore ParkingEye firmly believes that its Parking Charges are not punitive or a penalty. A charge of £75 pounds was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge and not a penalty, by which the motorist would be contractually bound.

“I conclude that any motorist using the car park would be contractually bound to pay the charge of £75 if he exceeded the specified time limit and a demand for payment was made up on him. Whilst he might argue that the charge in question amounted to a penalty and was therefore irrecoverable, I think he would probably fail in that contention.” (HHJ Hegarty QC ParkingEye v Somerfield Stores (2011).

4.1 The case of Combined Parking Solutions v Mr Stephen James Thomas (2008) provides further evidence that a Parking Charge of a certain value – in this case one that begins at £60 and rises to £85 and £135 respectively – can be considered fair and reasonable. District Judge Ackroyd found that these amounts could not be considered as

a penalty. Nor could he find that it was a disproportionately high sum in compensation. This was upheld by Judge John Robins who ruled that a Parking Charge of £135 was not unreasonable, being in line with the BPA Code of Practice. Instead he found that it escalated in accordance with the warnings given and constituted a reasonable charge. (Combined Parking Solutions v Blackburn [October 2007]).

4.2 Furthermore the figure of £100 has been endorsed as a reasonable upper level of charging across the industry and both the Parking Charge amounts and the reduction of 40% for early payment within 14 days were prescribed and approved by the British Parking Association in consultation with the Department for Transport in 2012.

“The defendant said to me that there was no loss at all the to client in him parking there. I do not agree with that because if people keep parking on land over some period of time, the rights over that land can accrue and it is very important for owners of land to make sure that those rights do not accrue, as they could lose interest in their land. That alone is a good and valid reason to stop someone from parking on that lad because, quite simply, if he had parked there loss could at some point have accrued to the owner.”

4.4 ParkingEye does not believe that the terms, set out by ParkingEye in conjunction with the landholder, are unfair. However, if the defendant believed them to be, he or she should not have parked in the car park.

4.5 ParkingEye does not believe that its Parking Charges are extravagant and unconscionable. Furthermore the finding of Lord Justice Colman in Lordsvale Finance v Bank of Zambia (1996) has since been found to be more instructive. Lord Justice Manse in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. V United International Pictures & Ors (2003) stated,

“I have also found valuable Colman J's further observation in Lordsvale at pp. 763G – 764a, which indicate that a dichotomy between a genuine pre-estimate of damages and apenalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable.”

4.6 In ParkingEye Ltd. V Kevin Shelley, Circuit Judge Dodd found, on a balance of probabilities, it was more likely that the dominant purpose of the Parking Charge was to provide for regulation of the car park area.

4.7 ParkingEye have instructed Barrister Johnathan Kirk QC to give his opinion on the matter of pre-estimate of loss. He has stated that, “the burden of proving that the fixed charge amounted to a penalty would be upon the motorist,” that ParkingEye should, “document clearly an attempt to pre-estimate the loss occasioned”, and that, “the Courts have recognised that this can be 'rough and ready' and will not be defeated because it is not absolutely accurate. It may be possible to achieve a global figure across the business.” This then is what we provide here.

4.8 This was supported in Mayhook v National Car Parks and Fuller (2012). Here the Judge stated “I do not find that this is a penalty. I think it is NCP doing its best in a very difficult field genuinely to pre-estimate loss.”

4.9 It must therefore be noted that this is a very difficult industry in which to determine a completely accurate pre-estimate of loss. This will depend both on losses to

ParkingEye, and on the potential losses to the landholder, which will vary depending on the time of day, the day of the week and even upon the weather.

4.10 We have calculated the outstanding Parking Charge amount as a genuine pre-estimate of loss as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these. These costs include (but are not restricted to);

4.11 Erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office-based administrative staff, membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO, general costs including stationery, postage etc.

4.12 This sum, and the calculations which have been made in setting it, has been approved and agreed by the landholder. This sum was also clearly laid out on the signage at the site and, by remaining on site, we contend that the motorist has accepted all of the prevailing terms and conditions of that contract, including the charges for breach of contract. Furthermore, there is commercial justification for the charges, and the charges were approved and prescribed by the British Parking Association and the Department for Transport in 2012.

4.13 Here, ParkingEye has focused on its losses, although, as noted above, there are also significant losses incurred by the landholder.

4.14 The average payment by motorists who have been issued with a Parking Charge by ParkingEye is circa £63. Circa 84% of this payment (circa £53) covers ParkingEye's costs. This information has been taken from ParkingEye's company accounts and these can be provided to the court if requested.

4.15 ParkingEye is required to offer a 40% reduction to motorists for early payment within 14 days. Therefore, this reduced amount needs to be greater than or equal to £53in order for ParkingEye to operate as a business. Therefore, the upper amount of the charge needs to be at the level outlined below. Furthermore, the amount of £100 was approved and prescribed by the British Parking Association in consultation with the Department of Transport in 2012. Therefore, the full amount of the Parking Charge, which is an enforceable charge levied for breach of contract, is £100. The reduced amount for early payment is £60.

4.16 ParkingEye accepts payment of the reduced amount at many stages of its appeal process, including when a motorist who has appealed to ParkingEye is given the opportunity of appealing to the Parking On Private Land Appeals (POPLA) service. It is only if a defendant ignores all ParkingEye correspondence, or loses an appeal at POPLA, that the charge will be increased to the higher amount. At this stage, ParkingEye will have incurred further costs, and this increase is in line with BPA regulations and the terms and conditions set out on the signage. If legal proceedings are entered into, this amount will rise accordingly.

“whether a provision is to be treated as a penalty is matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach . . . deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

4.18 This follows the traditional definition of Lord Dunedin in the case of Dunlop in 1915. However, at 763g and following it continues,

“the jurisdiction in relation to penalty clauses is concerned not primarily with the enforcement of inoffensive liquidated damages clauses but rather with protection against the effect of penalty clauses. There would therefore seem to be no reason in principle why a contractual provision the effect of which was to increase the consideration payable under an executory contract upon the happening of a default should be struck down as a penalty if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach.”

4.19 This description was approved by Lord Justice Manse in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. V United International Pictures & Ors (2003) EWCA Civ 1669 in which he stated,

“I have also found valuable Colman J's further observation in Lordsvale at pp. 763G – 764a, which indicate that a dichotomy between a genuine pre-estimate of damages and apenalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable.”

4.20 Circuit Judge Dodd found that the key issue was not whether or not the charge was a pre-estimate of loss; but whether the purpose of the Parking Charge is to deter breach, or if the dominant purpose is commercially justified. We strongly argue that there is commercial justification for the charges. The Judge found that, on the balance of probabilities, it was more likely that the dominant purpose was to provide for regulation of the car park area. He also stated that it was not common for the courts to find a penalty within a contract. He stated that a breakdown of loss was not required, as the contract was formed on its own terms.

4.21 In Cavendish Square Holdings v El Makdessi (2012) it was stated,

“I am not persuaded that Clause 5.6 is a penalty clause, the onus being upon the Defendant:

i) it serves a commercial purpose.

ii) I am not satisfied that it's purpose is to deter.

However, the reality is that, in the modern approach to the concept of penalty discussed above, there is no longer the need for the dichotomy between liquidated damages and genuine pre-estimate of loss, and so the relevant questions seem to me to be simply:-

i) was there a commercial justification?

4.22 ParkingEye firmly believes that its charges are fair and reasonable. There is commercial justification for the charges, which means that the charges cannot be considered penalties (see E-Nik v Dept for Communities (2012) and Cadogan Petroleum Holdings Ltd v Global Process Systems LLC (2013)). Private management of car parks is commercially necessary for landholders. They have a right to manage their private

land as they see fit and allow motorists to use this land for parking under certain terms and conditions. The contracts, and its clauses, are necessary to prevent abuse of private land. This is commercially necessary as the landholder needs to manage their land in order to ensure that their business can run successfully. The terms and conditions of parking on private land are set out in consultation and conjunction with the landholder, and it is the obligation of the motorist to comply with these when they park in the car park. ParkingEye does not believe that the terms, set out by the landholder, are unfair. However, if the defendant believed them to be, they should not have parked in the car park.

5 ParkingEye does not believe that the contract is unfair. In Combined Parking Solutions v Dorrington (2012), it was found that the contract was fair. The Judge stated,

“I am satisfied that this is a contract freely entered into by the defendant. An offer was made by the owners of the land that if someone to park there they could, subject to charge. That offer was accepted by the defendant when he parked there. There was considerationon both sides of parking by the defendant and the sum of money that the claimant was entitled to expect and, because of the way it was set up, because it was at arm's length, because there were formal legal notices there, there was clearly an intention to create legal relations, and the law simply holds the defendant to that contract.”

5.1 The Judge also referred to the case of Lord Roskill Export Credits v UOP,

“It is not and never has been for the court to relieve a party from the consequences of what may be in the event proved to be erroneous or possibly even a commercially imprudent bargain.”

5.2 It is therefore ParkingEye's strong belief that this contract is not unfair. The driver was made aware of the terms and conditions of parking, in keeping with the British Parking Association regulations. Having entered the contract, the defendant cannot now decide that they do not wish to be bound by it. The contract was presented to the driver and was entered into freely. The contract did not cause a significant imbalance in the parties' rights and obligations. The landholder was obliged to provide managed parking space while the motorist was obliged not to break the terms and conditions of parking laid down by ParkingEye in conjunction with the landholder. ParkingEye does not believe that these terms are unfair. However, if the driver believed them to be, they should not have parked in the car park.

5.3 In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd found that, on private land, the landholder is entitled to set out terms and conditions, subject to law, and that these are fully enforceable.

5.4 All of our correspondence sent to the defendant has clearly outlined the reasons for the claim, being due to an overstay of the max stay time on site. All this information has subsequently been provided to the defendant in the particulars of claim, which also included an image of the sign, to evidence the terms and conditions that were broken.

5.5 ParkingEye would also like to add that on the reverse of all correspondence sent to the defendant, ParkingEye has stated that all appeals should be put in writing and sentto ParkingEye within 28 days. ParkingEye believes that the defendant broke the terms and conditions of parking and that therefore they are required to pay the outstanding charge. However, had the defendant corresponded with us initially, as requested, ParkingEye believes it could have answered many of the defendant's points directly and resolved the matter without having to issue court proceedings. However, as we have had no correspondence whatsoever from the defendant, we have had no choice but to enter into legal proceedings, and have incurred further costs in pursuing this matter (see attached letter).

5.6 Please note that, according to Civil Procedure Rules 1998, a document, other than a claim form, which is sent by First Class Post, shall be deemed to be served on the second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that.

5.7 ParkingEye would also like to state that this defence is a standard, generic defence, distributed on online forums to motorists attempting to avoid paying Parking Charges and that we receive many near identical defences.

I can only help with what you tell me. Post up information (other than names and addresses!).

I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

Upload images to your thread like this .Email kati@legalbeagles.info if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

I can only help with what you tell me. Post up information (other than names and addresses!).

I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

Upload images to your thread like this .Email kati@legalbeagles.info if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

Re: Parking Eye, Court papers recieved from Northampton.

Yes Mystery The correspondence I got from Parking eye is very similar to the one you publish.
I am not sure what you mean about the paper from Threadneedle which is exactly like the one you showed to me its just signed by a different person.
Sorry I took a while to reply but life got in the way (Shopping)

I can only help with what you tell me. Post up information (other than names and addresses!).

I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

Upload images to your thread like this .Email kati@legalbeagles.info if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

Parking Eye, Court papers recieved from Northampton.

I am now at this stage with my wife's legal battle. Got the same detailed case history letter and the parking charge amount document just says a lot and has no substance

The covering letter just says that "parking eye wishes to proceed with this County Court Claim" with a reply to the defence

Kind regards

Legal Department
Parking Eye

What now? I'd personally like to throw a few hundred pounds at this and push it as far as I can but my wife is not so wound up as me. I wouldn't mind but she did spend 4 hours in a 3 hour parking area but actually spent all the time there with her friend. Perhaps I need to get her friend to act as a witness. She got the same letters but gave in and paid !!

Originally Posted by mystery1

Like this ?

Reply to Defence

1 ParkingEye agrees with the defendant on this point.

2 ParkingEye does not dispute this.

3 ParkingEye's Parking Charges are issued on the basis of a contract with the motorist, set out via the signage at the site. The signage sets out the terms and conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable ifthe conditions are not met. We ensure signage is ample, clear and visible in line with the British Parking Association (BPA) code of practice to ensure that the motorist is bound by them when they enter and remain at a client site, so that all users of the site are obliged to follow these rules. This is a matter of contract law. In ParkingEye v Kevin Shelley (2013),Circuit Judge Dodd stated that a contract can be formed by conduct, not just in writing Hefurther stated that the contract, as set out on the signage, is clear and certain enough, and that the terms were clear and easy to understand. He stated that it was not common for the courts to find penalty terms within a contract. It was further found that, on private land, the landholder is entitled to set out terms and conditions, subject to law, and that these are fully enforceable.

3.1 The case of Vine v London Borough of Waltham Forest (2000) proves particularly useful in respect to the creation of a contract with the driver. It was found by Lord Justice Waller that:

“Normally the presence of notices which are posted where they are bound to be seen, forexample the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of an appreciated the warning.”

3.2 The driver is not coerced into using the car park. If the driver was not prepared to agree to the terms and conditions set out on the signage, they should not have used the car park. However by driving into the car park and parking their vehicle the driver agrees to the parking terms detailed on the signage. In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd found that, on private land, the landholder is entitled to set out terms and conditions, subject to law, and that these are fully enforceable. Furthermore it should be noted that Section 7.1 of the Department of Transport's guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 states that a:

“car park on private land will normally have signs setting out the terms and conditions upon which parking is offered”.

3.3 In accordance with this ParkingEye's car parks have ample and clear signage that outlines these terms and conditions. Section 7.1 further states that:

“Drivers can then decide whether or not to accept those terms and conditions. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park with the landholder.”

3.4 In this location, as the images attached show, there is clear and ample signage at the entrance to and throughout the car park. ParkingEye firmly believes that the defendant entered into a legally enforceable contract.

“On the facts of this case we do not consider that any offer was made by VCS that was capable of forming the basis for a contract between it and the motorist. VCS was not in a position, by virtue of its limited licence, to make any offer of a right to park. The ability tooffer such a right was not conferred by the contract with the client, either expressly or byvirtue of the interest in the car park conferred on VCS. That interest did not amount to a licence to occupy, or give VCS any right to possession. It merely conferred a right of entry to perform VCS's obligations under the contract.”

3.6 VCS did not have the authority to take legal action in their own name, 'by virtue of its limited licence”. This does not apply to ParkingEye as our contract with our client clearly expresses that we can take legal action to recover any unpaid Parking Charges, in line with the British Parking Association Code of Practice.

3.7 We include a witness statement signed by the landholder confirming that [stet] had the written authority to issue Parking Charges at this time of this Parking event and that this authority is contained in a contract. The contract itself contains much commercial information which is not related to this case and therefore we are disinclined to divulge it. However, a copy will be made available to the court if requested by the court.

4 In relation to the value of the Parking Charge, ParkingEye maintains that its charges are fair and reasonable. Furthermore ParkingEye firmly believes that its Parking Charges are not punitive or a penalty. A charge of £75 pounds was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge and not a penalty, by which the motorist would be contractually bound.

“I conclude that any motorist using the car park would be contractually bound to pay the charge of £75 if he exceeded the specified time limit and a demand for payment was made up on him. Whilst he might argue that the charge in question amounted to a penalty and was therefore irrecoverable, I think he would probably fail in that contention.” (HHJ Hegarty QC ParkingEye v Somerfield Stores (2011).

4.1 The case of Combined Parking Solutions v Mr Stephen James Thomas (2008) provides further evidence that a Parking Charge of a certain value – in this case one that begins at £60 and rises to £85 and £135 respectively – can be considered fair and reasonable. District Judge Ackroyd found that these amounts could not be considered as

a penalty. Nor could he find that it was a disproportionately high sum in compensation. This was upheld by Judge John Robins who ruled that a Parking Charge of £135 was not unreasonable, being in line with the BPA Code of Practice. Instead he found that it escalated in accordance with the warnings given and constituted a reasonable charge. (Combined Parking Solutions v Blackburn [October 2007]).

4.2 Furthermore the figure of £100 has been endorsed as a reasonable upper level of charging across the industry and both the Parking Charge amounts and the reduction of 40% for early payment within 14 days were prescribed and approved by the British Parking Association in consultation with the Department for Transport in 2012.

“The defendant said to me that there was no loss at all the to client in him parking there. I do not agree with that because if people keep parking on land over some period of time, the rights over that land can accrue and it is very important for owners of land to make sure that those rights do not accrue, as they could lose interest in their land. That alone is a good and valid reason to stop someone from parking on that lad because, quite simply, if he had parked there loss could at some point have accrued to the owner.”

4.4 ParkingEye does not believe that the terms, set out by ParkingEye in conjunction with the landholder, are unfair. However, if the defendant believed them to be, he or she should not have parked in the car park.

4.5 ParkingEye does not believe that its Parking Charges are extravagant and unconscionable. Furthermore the finding of Lord Justice Colman in Lordsvale Finance v Bank of Zambia (1996) has since been found to be more instructive. Lord Justice Manse in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. V United International Pictures & Ors (2003) stated,

“I have also found valuable Colman J's further observation in Lordsvale at pp. 763G – 764a, which indicate that a dichotomy between a genuine pre-estimate of damages and apenalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable.”

4.6 In ParkingEye Ltd. V Kevin Shelley, Circuit Judge Dodd found, on a balance of probabilities, it was more likely that the dominant purpose of the Parking Charge was to provide for regulation of the car park area.

4.7 ParkingEye have instructed Barrister Johnathan Kirk QC to give his opinion on the matter of pre-estimate of loss. He has stated that, “the burden of proving that the fixed charge amounted to a penalty would be upon the motorist,” that ParkingEye should, “document clearly an attempt to pre-estimate the loss occasioned”, and that, “the Courts have recognised that this can be 'rough and ready' and will not be defeated because it is not absolutely accurate. It may be possible to achieve a global figure across the business.” This then is what we provide here.

4.8 This was supported in Mayhook v National Car Parks and Fuller (2012). Here the Judge stated “I do not find that this is a penalty. I think it is NCP doing its best in a very difficult field genuinely to pre-estimate loss.”

4.9 It must therefore be noted that this is a very difficult industry in which to determine a completely accurate pre-estimate of loss. This will depend both on losses to

ParkingEye, and on the potential losses to the landholder, which will vary depending on the time of day, the day of the week and even upon the weather.

4.10 We have calculated the outstanding Parking Charge amount as a genuine pre-estimate of loss as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these. These costs include (but are not restricted to);

4.11 Erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office-based administrative staff, membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO, general costs including stationery, postage etc.

4.12 This sum, and the calculations which have been made in setting it, has been approved and agreed by the landholder. This sum was also clearly laid out on the signage at the site and, by remaining on site, we contend that the motorist has accepted all of the prevailing terms and conditions of that contract, including the charges for breach of contract. Furthermore, there is commercial justification for the charges, and the charges were approved and prescribed by the British Parking Association and the Department for Transport in 2012.

4.13 Here, ParkingEye has focused on its losses, although, as noted above, there are also significant losses incurred by the landholder.

4.14 The average payment by motorists who have been issued with a Parking Charge by ParkingEye is circa £63. Circa 84% of this payment (circa £53) covers ParkingEye's costs. This information has been taken from ParkingEye's company accounts and these can be provided to the court if requested.

4.15 ParkingEye is required to offer a 40% reduction to motorists for early payment within 14 days. Therefore, this reduced amount needs to be greater than or equal to £53in order for ParkingEye to operate as a business. Therefore, the upper amount of the charge needs to be at the level outlined below. Furthermore, the amount of £100 was approved and prescribed by the British Parking Association in consultation with the Department of Transport in 2012. Therefore, the full amount of the Parking Charge, which is an enforceable charge levied for breach of contract, is £100. The reduced amount for early payment is £60.

4.16 ParkingEye accepts payment of the reduced amount at many stages of its appeal process, including when a motorist who has appealed to ParkingEye is given the opportunity of appealing to the Parking On Private Land Appeals (POPLA) service. It is only if a defendant ignores all ParkingEye correspondence, or loses an appeal at POPLA, that the charge will be increased to the higher amount. At this stage, ParkingEye will have incurred further costs, and this increase is in line with BPA regulations and the terms and conditions set out on the signage. If legal proceedings are entered into, this amount will rise accordingly.

“whether a provision is to be treated as a penalty is matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach . . . deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

4.18 This follows the traditional definition of Lord Dunedin in the case of Dunlop in 1915. However, at 763g and following it continues,

“the jurisdiction in relation to penalty clauses is concerned not primarily with the enforcement of inoffensive liquidated damages clauses but rather with protection against the effect of penalty clauses. There would therefore seem to be no reason in principle why a contractual provision the effect of which was to increase the consideration payable under an executory contract upon the happening of a default should be struck down as a penalty if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach.”

4.19 This description was approved by Lord Justice Manse in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. V United International Pictures & Ors (2003) EWCA Civ 1669 in which he stated,

“I have also found valuable Colman J's further observation in Lordsvale at pp. 763G – 764a, which indicate that a dichotomy between a genuine pre-estimate of damages and apenalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable.”

4.20 Circuit Judge Dodd found that the key issue was not whether or not the charge was a pre-estimate of loss; but whether the purpose of the Parking Charge is to deter breach, or if the dominant purpose is commercially justified. We strongly argue that there is commercial justification for the charges. The Judge found that, on the balance of probabilities, it was more likely that the dominant purpose was to provide for regulation of the car park area. He also stated that it was not common for the courts to find a penalty within a contract. He stated that a breakdown of loss was not required, as the contract was formed on its own terms.

4.21 In Cavendish Square Holdings v El Makdessi (2012) it was stated,

“I am not persuaded that Clause 5.6 is a penalty clause, the onus being upon the Defendant:

i) it serves a commercial purpose.

ii) I am not satisfied that it's purpose is to deter.

However, the reality is that, in the modern approach to the concept of penalty discussed above, there is no longer the need for the dichotomy between liquidated damages and genuine pre-estimate of loss, and so the relevant questions seem to me to be simply:-

i) was there a commercial justification?

4.22 ParkingEye firmly believes that its charges are fair and reasonable. There is commercial justification for the charges, which means that the charges cannot be considered penalties (see E-Nik v Dept for Communities (2012) and Cadogan Petroleum Holdings Ltd v Global Process Systems LLC (2013)). Private management of car parks is commercially necessary for landholders. They have a right to manage their private

land as they see fit and allow motorists to use this land for parking under certain terms and conditions. The contracts, and its clauses, are necessary to prevent abuse of private land. This is commercially necessary as the landholder needs to manage their land in order to ensure that their business can run successfully. The terms and conditions of parking on private land are set out in consultation and conjunction with the landholder, and it is the obligation of the motorist to comply with these when they park in the car park. ParkingEye does not believe that the terms, set out by the landholder, are unfair. However, if the defendant believed them to be, they should not have parked in the car park.

5 ParkingEye does not believe that the contract is unfair. In Combined Parking Solutions v Dorrington (2012), it was found that the contract was fair. The Judge stated,

“I am satisfied that this is a contract freely entered into by the defendant. An offer was made by the owners of the land that if someone to park there they could, subject to charge. That offer was accepted by the defendant when he parked there. There was considerationon both sides of parking by the defendant and the sum of money that the claimant was entitled to expect and, because of the way it was set up, because it was at arm's length, because there were formal legal notices there, there was clearly an intention to create legal relations, and the law simply holds the defendant to that contract.”

5.1 The Judge also referred to the case of Lord Roskill Export Credits v UOP,

“It is not and never has been for the court to relieve a party from the consequences of what may be in the event proved to be erroneous or possibly even a commercially imprudent bargain.”

5.2 It is therefore ParkingEye's strong belief that this contract is not unfair. The driver was made aware of the terms and conditions of parking, in keeping with the British Parking Association regulations. Having entered the contract, the defendant cannot now decide that they do not wish to be bound by it. The contract was presented to the driver and was entered into freely. The contract did not cause a significant imbalance in the parties' rights and obligations. The landholder was obliged to provide managed parking space while the motorist was obliged not to break the terms and conditions of parking laid down by ParkingEye in conjunction with the landholder. ParkingEye does not believe that these terms are unfair. However, if the driver believed them to be, they should not have parked in the car park.

5.3 In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd found that, on private land, the landholder is entitled to set out terms and conditions, subject to law, and that these are fully enforceable.

5.4 All of our correspondence sent to the defendant has clearly outlined the reasons for the claim, being due to an overstay of the max stay time on site. All this information has subsequently been provided to the defendant in the particulars of claim, which also included an image of the sign, to evidence the terms and conditions that were broken.

5.5 ParkingEye would also like to add that on the reverse of all correspondence sent to the defendant, ParkingEye has stated that all appeals should be put in writing and sentto ParkingEye within 28 days. ParkingEye believes that the defendant broke the terms and conditions of parking and that therefore they are required to pay the outstanding charge. However, had the defendant corresponded with us initially, as requested, ParkingEye believes it could have answered many of the defendant's points directly and resolved the matter without having to issue court proceedings. However, as we have had no correspondence whatsoever from the defendant, we have had no choice but to enter into legal proceedings, and have incurred further costs in pursuing this matter (see attached letter).

5.6 Please note that, according to Civil Procedure Rules 1998, a document, other than a claim form, which is sent by First Class Post, shall be deemed to be served on the second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that.

5.7 ParkingEye would also like to state that this defence is a standard, generic defence, distributed on online forums to motorists attempting to avoid paying Parking Charges and that we receive many near identical defences.

Re: Parking Eye, Court papers recieved from Northampton.

I am now at this stage with my wife's legal battle. Got the same detailed case history letter and the parking charge amount document just says a lot and has no substance

The covering letter just says that "parking eye wishes to proceed with this County Court Claim" with a reply to the defence

Kind regards

Legal Department
Parking Eye

What now? I'd personally like to throw a few hundred pounds at this and push it as far as I can but my wife is not so wound up as me. I wouldn't mind but she did spend 4 hours in a 3 hour parking area but actually spent all the time there with her friend. Perhaps I need to get her friend to act as a witness. She got the same letters but gave in and paid !!

Start a thread and put up everything without names and addresses etc.

It takes time and a realisation that you might lose (you shouldn't but funny things happen in courts especially at the lowest level). Losing or employing a solicitor whose costs you will not get back are the only ways it'll cost hundreds,

I can only help with what you tell me. Post up information (other than names and addresses!).

I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

Upload images to your thread like this .Email kati@legalbeagles.info if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !